com

fords access to the populous part of Rutherford and other places from their lands along the river, and renders the lands of the prosecutors available for almost any use,-that of residence, or other uses; that this improvement is an outlet to other places besides Rutherford. It opens a large tract of land for use; opens it to the main portion of Rutherford, and their river front is made available. The improvements run nearly through the middle of a large tract belonging to the prosecutors, and, according to their own plans, open it up to development. The question of benefits and damages to their lands has been extensively discussed, and many witnesses have been called on both sides. It appears in evidence that the prosecutors, before the improvement was menced, and at a time when they had joined with others in applying for it, were willing to be assessed quite heavily for it. Some of the witnesses think that a portion of the expenses should have been a burden upon the borough. Some fix a small proportion. Others fix a large proportion. Others contend that it should all be borne by the land benefited. The conclusion, from an examination of the evidence in connection with the report of the commissioners, is that the great weight of the evidence is in support of the assessment as made. A discussion of this evidence in detail appears to be useless. The fact that the evidence is conflicting as to benefits does not suffice to disturb the assessment. Jelliff v. Newark, 48 N. J. Law, 101, 2 Atl. Rep. 627; Hegeman v. City of Passaic, 51 N. J. Law, 113, 16 Atl. Rep. 62. The assessment must be sustained.

EMERY, J. There was a written contract between the plaintiff and defendant, which is reported in full. It provided (among other stipulations) for the delivery of 25 Royal Self-Dumping Rakes, at $25.50, by the plaintiff to the defendant between January 1 and June 15, 1889. It also provided for a settlement therefor by the defendant on September 1, 1889, in one of three ways, at the option of the defendant: (1) By cash; (2) by farmers' notes taken by defendant in exchange for rakes, and indorsed by him; (3) by his own note.

The plaintiff delivered the rakes within the stipulated time, and they were received by the defendant. He did not, however, make any settlement for them in either stipulated mode, nor in any mode, nor is there any provision in the contract releasing him from the stipulation for a settlement on the day named. He thus committed a breach of that stipulation and of the contract.

While the plaintiff could not maintain for this breach an action of indebitatus assumpsit for goods sold and delivered, it could maintain an action of special assumpsit, counting on the written contract and its breach. Hunneman v. Grofton, 10 Metc. (Mass.) 454, 459. The declaration in this action contains such a special count, and under it the plaintiffs are entitled to recover damages, which are to be assessed at the contract price, since the defendant cannot successfully dispute the full value of notes indorsed or signed by himself.

Exceptions sustained.

PETERS, C. J., and VIRGIN, LIBBEY, FOSTER, and WHITEHOUSE, JJ., concurred.

THOMAS MANUF'G CO. v. WATSON. (Supreme Judicial Court of Maine. Feb. 5,

1893.)

SPECIAL ASSUMPSIT-WHEN LIES-BREACH OF

CONTRACT.

A contract for the delivery of machines by the plaintiff to the defendant, and which contemplated sales thereof to others, and fulfilled on the part of the plaintiff, required the defendant to settle in one of three modes on a certain day. This he did not do. The court adheres to the rule that general indebitatus assumpsit for goods sold and delivered will not lie, but that an action of special assumpsit, counting on the contract, may be maintained, and damages to be assessed at the contract price.

(Official.)

Exceptions from supreme judicial court, Aroostook county.

Action by the Thomas Manufacturing Company against John Watson for breach of contract. Plaintiff had judgment for a part only of its claim, and brings exceptions. Exceptions sustained.

Madigan & Madigan and L. C. Stearns, for plaintiff. Powers & Powers and Wilson & Lumbert, for defendant.

HOLMES v. WALDRON. (Supreme Judicial Court of Maine. 1893.)

Feb. 22,

HUSBAND AND WIFE LIABILITY OF WIFE'S EsTATE FOR IMPROVEMENTS BY HUSBAND-MUTUAL WILLS NOT EVIDENCE OF CONTRACT.

1. An action of assumpsit by a husband against the wife's executor to recover for expenditures on the wife's property, before her death, will not be sustained in the absence of an express or implied promise.

2. There is no implied promise to pay for such expenditures, although made upon the expectation of benefits provided for the plaintiff under mutual wills between him and his wife. (Official.)

Exceptions from supreme judicial court, Kennebec county.

Action in assumpsit by Marshall H. Holmes against Frederick A. Waldron, executor. From a judgment of nonsuit, plaintiff brings exceptions. Exceptions overruled.

S. S. Brown, for plaintiff. Walton & Walton and F. A. Waldron, for defendant.

HASKELL, J. Assumpsit by a husband against the executor of his deceased wife, to

recover sums of money expended upon his wife's homestead during their joint occupancy of the same.

There is no proof of an express promise on the part of the wife to pay the plaintiff's claim; nor do the circumstances of the case raise an implied promise on her part to do 60. It appears that the plaintiff, a physician, married the testatrix, and moved into her home. He immediately repaired and refitted the same, to make it more comfortable and convenient for their joint use. The inference is that whatever he did was out of consideration for their joint comfort, and as a voluntary improvement of her property, without any expectation of payment therefor from her.

Soon after their marriage they executed wills in favor of each other. These, not proving satisfactory, were afterwards destroyed, and others executed in their places. The testatrix, however, at a later date, without the knowledge of her husband, executed a new will, that has been proved and allowed in the probate court. By the terms of it the plaintiff takes a life estate in the homestead, and the use for life of substantially all the household furniture, with the right to sell the furniture if necessary for his support after the expenditure of his own property.

It is urged that the outlay sought to be recovered here was made upon the expectation of benefits provided for the plaintiff under the mutual wills between them. If it were so, the law would raise no implied promise to pay such expenditure. The most it could do would be to give damages, measured by the difference between benefits expected by the plaintiff under the mutual will and those actually received under the real will, the expenditure working a consideration for the liability thus cast upon the testator. This method of compensation the plaintiff repudiates. His reasons for doing so are not stated. Perhaps the provision made for him under the last will is quite as valuable as that expected under the former will, although not quite so much to his taste. He has elected to make his claim for actual expenditures. This he cannot maintain, and the nonsuit must be confirmed.

Exceptions overruled.

PETERS, C. J., and WALTON, LIBBEY, and FOSTER, JJ., concurred.

WHITING v. CITY OF ELLSWORTH. (Supreme Judicial Court of Maine. Feb. 8, 1893.)

TAXATION ACTION TO RECOVER TAXES PAIDEVIDENCE-Power of COLLECTOR DE FACTO.

1. In a suit to recover a tax paid by the plaintiff, claimed to be illegally assessed because the assessors did not appear to have been sworn, parol evidence is admissible to show that the proper oath was administered, and the court has power by Rev. St. c. 3, § 10, to permit the record of the town clerk to be amended accordingly.

V.27A.no.4-12

2. Where the tax was received by the collector, who was not sworn, but was acting under color of his office, held, that he was collector de facto, and had the right, as between the town and taxpayer, to receive and receipt for the taxes committed to him as such officer. (Official.)

Exceptions from supreme judicial court, Hancock county.

Action in assumpsit by Samuel K. Whiting against the city of Ellsworth. Defendant had judgment, and plaintiff brings exceptions. Exceptions overruled.

Hale & Hamlin, for plaintiff. Wiswell & King, for defendant.

LIBBEY, J. This is assumpsit by the plaintiff to recover of the defendant city the amount paid by him to James A. McGown, acting collector, as his taxes on personal property in said city for 1890. The plaintiff claimed that he was not an inhabitant of Ellsworth on the 1st day of April of that year. He was arrested by said McGown for nonpayment of his tax, on the 30th day of September, 1890, and thereupon paid his tax under protest, and in this action seeks to recover it back.

It is admitted that said McGown, as collector, paid the tax to the city treasurer on the same day.

The jury found against the plaintiff on the question of his liability to taxation as an inhabitant of said city, and that fact is no longer in contention.

The plaintiff claims to recover on two grounds:

(1) That the assessors for 1890 were not qualified by taking the oath required by the statute before the performance of their duties. The record of their election and qualification was put in evidence by the plaintiff, and he claimed it was not sufficient to prove that the oath was duly administered to them. The city clerk was then called by the plaintiff as a witness, and on cross-examination testified that all the assessors were duly sworn in his presence. The de fendant then asked leave for the clerk to amend his record of the administration of the oath according to the fact, which was granted by the court, and the amendment was made. It is claimed that this was error. There can be no doubt about the power of the court to permit such amendment. Rev. St. c. 3, § 10.

But if there was no sufficient record of the oath, the fact that the assessors were duly sworn may be proved by parol, and it was proved by the city clerk.

(2) It is claimed that McGown, acting as collector, was not sworn as required by the statute, and had no legal authority to act as such when he arrested the plaintiff and received from him his tax.

The tax was legally assessed upon the plaintiff. It was due to the city. McGown was duly chosen collector; gave the requisite bond as such; and the taxes were duly

1. The credibility of a witness, upon whose testimony, in part, the issue is to be determined, is not regarded as collateral nor as immaterial.

2. A material fact, testing his credibility, may be contradicted by the opposing party, although called out by his cross-examination.

3. Upon a libel against intoxicating liquors deposited and kept for illegal sale, the issue, as made up by the pleadings under the statutes, is whether the claimant owned the liquors, and had no intent to sell them in violation of law, at the time when the complaint was made.

4. The search, seizure, and confiscation provisions of Rev. St. c. 27, are aimed at the present condition of the liquors, and the present intent of the keeper, and not of the past.

(Official.)

Exceptions from supreme judicial court, Franklin county.

Libel by the state of Maine for the condemnation of certain intoxicating liquors, which Samuel Farmer claims as owner. Libelant had judgment, and claimant brings exceptions. Exceptions sustained.

F. E. Timberlake, Co. Atty., for the State. H. L. Whitcomb and J. C. Holman, for claimant.

LIBBEY, J. Two points are raised by the defendant's exceptions:

1. The exclusion of Arthur Merrill as a witness. Laura F. Turner was called by the state, and testified that she occupied a room next to room 10, in the claimant's hotel, in which latter room part of the liquors were found, "and at various times before the seizure had heard Samuel Farmer, in room 10, with different persons, talking about liquors and prices." On cross-examination she was asked by claimant if she could name any persons so heard in room 10, and answered she could. She was then asked to give some names. In answer she gave the name of Arthur Merrill, of Phillips, as one of the persons she had heard in that room.

In his defense the claimant called said Arthur Merrill, and asked him if he was ever in said room 10. This question was objected to by the county attorney on "the ground

that the name of Merrill was called out by the claimant himself, from Mrs. Turner, and he could not now contradict her answer." The court sustained the objection, and exIcluded the evidence. We think the question was competent. The question put to the witness Turner was proper and relevant. It related to the subject-matter of her testimony. It did not call out a collateral and irrelevant fact, and the answer was not conclusive on the claimant. Testimony of Merrill that he was never in room 10 might have some tendency to impair the credit of Mrs. Turner.

2. To the instructions of the judge to the jury.

The claimant contended that the state must show that, at the time the complaint and warrant for search were made, he then had the intent that the liquors should be sold in violation of law; that it was not sufficient for the state to show that at some previous time the liquors had been deposited or kept for such sale, if before the search the owner had changed his mind, and at the time of the complaint and search had no intention to sell the liquors. In reference to this contention, the presiding justice instructed the jury as follows:

"Now, the issue is as to whether or not these particular liquors described in this libel, and seized by the officer, and now in his possession, were kept and deposited at that hotel in Phillips with the intent that the same should be sold in violation of law. The state says that they were. Mr. Farmer, the claimant of them, says that they were not.

"You have heard it said to you by the defendant's counsel that the government must prove that they were intended for sale by the owner of them at the precise moment when the officer swore out the complaint. He contends, if I understand him, that, whatever may have been the intent before that, one hour before that, or a day before that, or a week before that, or whenever they were deposited there,-unless the owner, at the moment of the complaint being made for the search and seizure, then had the intent to sell them, the prosecution fails, and the liquors are free from any blame. I cannot assent to that proposition. I do not think it is the law. I do not think that the people of this state are bound to prove that at the precise moment the liquors were seized the owner of them then intended, or had the intent, to sell them contrary to law. It may be that the owner at that moment had no intent at all; it may be that he had forgotten all about them,-had forgotten that they were there, perhaps; at the precise moment he may have been thinking of something else,-may have been thinking of some matter of business. To my mind, gentlemen, when the liquors are once corrupted, once tainted, by being deposited and kept for unlawful sale, they cannot be

come sweet and pure again, and free from this taint and corruption imposed upon them by the law, by the simple fact that the owner has become frightened, and concluded that it is not safe to sell.

"Therefore, I give you the rule in this case that, if these liquors which were libeled and seized according to this process, within six years were deposited in that hotel, and kept in that hotel, with the intent that the same should be sold in this state in violation of law, they then and there became tainted and corrupted, and then and there became contraband, and forfeited to this state."

Under the rule of law very clearly and tersely stated in the last clause, it was the duty of the jury to find in favor of the state, if satisfied that the claimant, five years before the liquors were seized, had the intention to sell them in this state in violation of law, although the evidence satisfied them that immediately thereafter he determined to abandon the business, and make no more sales, and has adhered to that intention, making no sales for the five years before the seizure, and had kept the liquors for his own lawful uses.

We think this instruction to the jury was not sound law. The search, seizure, and confiscation provisions of Rev. St. c. 27, are aimed at the present condition of the liquors, and the present intent of the keeper, and not of the past. So held by this court in State V. Howley, 65 Me. 100, and affirmed in State v. Dunphy, 79 Me. 104, 8 Atl. Rep. 344.

A complaint under said statute made on the 1st day of January, 1892, which, after describing the place to be searched, alleges that the liquors therein kept were intended to be sold in this state, in violation of law, on the 1st day of January, 1887, would be clearly bad.

When the liquors seized are libeled, and claimed by a claimant, the issue made up by the pleadings, under the statute, is whether the claimant owns them, and had no intent to sell them in violation of law when the complaint was made. Exceptions sustained.

PETERS, C. J., and WALTON, VIRGIN, FOSTER, and HASKELL, JJ., concurred.

HEWETT v. COUNTY COMMISSIONERS. (Supreme Judicial Court of Maine. Feb. 18, 1893.)

CONDEMNATION PROCEEDINGS-POWER OF COUNTY COMMISSIONERS TO LOCATE RAILROAD CROSSINGS

-CERTIORARI-PRACTICE.

1. Of the three methods of procedure open to the defense upon petitions for certiorari.

2. County commissioners, in assessing damages for land taken by the location of a railroad, have no power to establish private crossings other than farm crossings. They cannot otherwise limit or restrict railroads in the free

enjoyment of their roadways within their respective locations. (Official.)

Report from supreme judicial court, Knox county.

Certiorari by James H. H. Hewett, administrator of the estate of Samuel Pillsbury, deceased, against the court of county commissioners of Knox county, to review the judg ment of defendant on the petition of the Lime Rock Railroad Company to assess damages for land taken which belonged to decedent. Heard on report. Judgment affirmed in part.

Mortland & Johnson, for petitioner. C. E. & A. S. Littlefield, for county commissioners.

HASKELL, J. Certiorari to quash the record of the county commissioners of Knox county in assessing damages to land from the location of the Lime Rock Railroad.

To petitions for the writ of certiorari a copy of the record sought to be quashed should be annexed, and notice thereon ordered to the tribunal whose record is sought to be quashed, and, in the discretion of the court, to such persons as may be interested in the result, who may appear and answer and be subject to costs. Rev. St. c. 102, 8 14. At the hearing three methods of procedure are open to the defense:

First. If the record is thought to be sufficient to submit the cause to the court as upon demurrer, then, if the record fails to show jurisdiction on the part of the court entering the judgment, the writ should issue as a matter of right, and refusal would be error, and exceptionable; but if it simply shows inconsequential errors that are harmless, or might palpably be corrected by amendment, the writ should be denied. Hayford v. Commissioners, 78 Me. 153, 3 Atl. Rep. 51.

Second. If the record be defective in not reciting facts that appear from the proceedings, or that were actually adjudged, and omitted inadvertently from the record, to file, under oath, an answer setting up such facts, and the answer is conclusive evidence of the facts thus recited, but not of the legal conclusions to be drawn from them. Levant v. Commissioners, 67 Me. 429; Andrews v. King, 77 Me. 239. If the facts so set up show that an amended record would sustain the jurisdiction of the court over the matter before it, leaving, perchance, only defects that do not materially affect the substantial rights of the parties interested, the writ should be denied, otherwise it should issue; or, if ordered to issue, the court below may send up an amended record according to the facts in the case, (Dresden v. Commissioners, 62 Me. 365; Lapan v. Commissioners, 65 Me. 160;) for when the writ issues the sufficiency of the record returned in answer to the writ must be determined from an inspection of it, (Levant v. Commissioners, supra.)

Third. Matters in estoppel or bar of the writ may be pleaded by way of answer, or

Included in the answer last before considered. Sometimes such matters appear from the record sent up in answer to the writ, and then operate the same as if interposed by answer. Phillips v. Commissioners, 83 Me. 541, 22 Atl. Rep. 385.

In this case, after hearing upon the petition, the court, being in doubt from the answer as to some of the facts set up in defense, the defendants not being at hand to verify a more particular statement of them, and to give progress to the case, ordered the writ to issue, and, as is within the personal knowledge of the justice who draws this opinion, without prejudice to the defendant's right to return in answer thereto an amended record. Chapman v. Commissioners, 79 Me. 267, 9 Atl. Rep. 728.

The defendants made no formal return of their record to the writ, as regularity in procedure required them to do, but, instead thereof, their original record, with the amendment to it, was introduced in evidence at the trial, and the cause continued on report. No objection to this irregularity is pressed, and therefore the case will be considered as if the record had been returned in due course of procedure.

The first objection to the original record is that the award of damages in favor of the estate of the late Samuel Pillsbury, deceased, does not sufficiently designate to whom they shall be paid. This objection is obviated by the amendment, making them payable to the plaintiff in his official capacity as administrator of the deceased owner of the land.

The remaining objection is that the award of a road as "now used to and from" the kiln as a crossing of a railroad was beyond the power of the commissioners to give, and therefore not binding upon the railroad company, which might obstruct or prevent the use of it at any time; so that damages assessed upon the theory that the road was secure for the future use of the kilu, when it was not, did not give compensation, and cannot be assessed to do so in petitioner's appeal now pending, until the permanency of the road be first determined. .

This question might, perhaps, be determined on the trial of the appeal on the assessment of damages, but it can just as well be considered and settled here, and thereby fix the rule upon which that trial may proceed.

Railway companies, by locating their roads without excepting and reserving crossings for the use of the landowner, absolutely cut off all such rights, no matter how great the necessity for them may be, and damages are to be assessed upon that theory. Railroad Co. v. Miller, 125 Mass. 1; Presbrey v. Railway Co., 103 Mass. 1; Mason v. Railroad Co., 31 Me. 215; Railroad Co. v. McComb, 60 Me. 290. When, however, such crossings can be required and established by judicial authority, the convenience thus afforded must be

considered in awarding the pecuniary damages. Rev. St. c. 51, § 21.

In this case the county commissioners did consider and award that the railroad company should "keep open the road now used to and from the" kiln of petitioner's intestate. Had they power to do it? The present statute, copied from the Revision of 1871, confers the power to establish "cattle guards, cattle passes, and farm crossings," purely ways of an agricultural nature, and to serve the uses of a farm. The original legislation was in 1864, (chapters 231, 246.) Chapter 246 seems to have conferred more enlarged powers upon the commissioners. Its provisions are of a most general character, and somewhat vague and indefinite. The revisors, in 1871, must have considered that they included in their revision all the essential powers conferred by these statutes. A second revision made no change, nor has any change of the plain reading of the statute of 1871 been attempted by the legislature in these last 20 years. It would be a stretch of judicial construction to read into the present statute a meaning so much wider than its plain language fairly imports. That limits the powers of the commissioners, in this. behalf, to crossings needed for agricultural purposes only. It is not broad enough to confer powers that may require railroads to maintain private crossings for any landowner, regardless of the use and necessity. These companies, when passing through cities and towns, can best determine from the necessity of their business, when they locate their roads, where and what crossings for private and commercial uses it is expedient for them to establish and maintain, or when they had better pay large damages, perhaps, to be rid of all private interference.

Private ways across railroads may be secured by reservation, grant, agreement, or adverse use. Gay v. Railroad Co., 141 Mass. 407, 6 N. E. Rep. 236; Wright v. Railroad Co., 142 Mass. 296, 7 N. E. Rep. 866; Deerfield v. Railroad, 144 Mass. 325, 11 N. E. Rep. 105; Turner V. Railroad Co., 145 Mass. 433, 14 N. E. Rep. 627; Railroad Co. v. Frost, 147 Mass. 118, 16 N. E. Rep. 773. It would seem, therefore, that damages assessed by county commissioners, upon the consideration of the existence of ways de termined by them and mentioned in their records, and paid by the railway companies, would work an estoppel on such companies from disputing the existence of such ways, or from seeking to quash the record giving them, and become equivalent to a contract for their existence. Perhaps these rights might be extinguished by a new location, followed by a new assessment of damages. It is settled law that a record may be affirmed in whole or in part in proceedings of this nature. Minot v. Commissioners, 28 Me. 121; Com. v. Blue Hill Turnpike Corp., 5 Mass. 420; Com. v. West Boston Bridge, 13 Pick. 195. Inasmuch as we know that an